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Antipersonnel Mines, Booby Traps and Improvised Explosive Devices As War Crimes

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Antipersonnel Mines, Booby Traps and Improvised Explosive Devices As War Crimes Antipersonnel Mines, Booby Traps and Improvised Explosive Devices as War Crimes Moffett, L., Bergqvist, A., Karakolis, A., O'Hagan , C., & Thabeth , S. (2017). Antipersonnel Mines, Booby Traps and Improvised Explosive Devices as War Crimes. QUB Human Rights Centre. Document Version: Publisher's PDF, also known as Version of record Queen's University Belfast - Research Portal: Link to publication record in Queen's University Belfast Research Portal Publisher rights Copyright Authors 2017. This work is made available online in accordance with the publisher’s policies. Please refer to any applicable terms of use of the publisher. General rights Copyright for the publications made accessible via the Queen's University Belfast Research Portal is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy The Research Portal is Queen's institutional repository that provides access to Queen's research output. Every effort has been made to ensure that content in the Research Portal does not infringe any person's rights, or applicable UK laws. If you discover content in the Research Portal that you believe breaches copyright or violates any law, please contact [email protected]. Download date:24. Sep. 2021 Executive Summary Executive Summary Anti-personnel mines, booby-traps and improvised explosive devices continue to kill and maim civilians on a daily basis, representing an affront to the basic principles of distinction and avoiding unnecessary suffering in international humanitarian law. Despite twenty years on from the Second Amended Protocol to the Convention on Certain Conventional Weapons and the Ottawa Convention on the Prohibition of Anti-Personnel Mines, there have been more than 100,000 casualties of mines or explosive remnants of war (ERW) between 1999-2015.1 In the Ukraine between May-August 2016 13 civilians were killed (including three children) and 41 injured (7 children) by mines, ERW and booby traps.2 In Syria and Iraq, ordinary everyday objects have been rigged with explosive to indiscriminately and perfidiously kill and injure. Yet, there remains legal uncertainty of whether employing anti-such weaponry amounts to war crimes. In August 2017 Belgium proposed amendment to the Rome Statute of the International Criminal Court to include inter alia anti-personnel mines as war crimes.3 This report based on research on international law, state practice and jurisprudence outlines the status and legality of anti-personnel mines and booby-traps on the extent to which they can be considered war crimes. Drawing from this research we also propose draft provisions of what such war crimes would look like under the Rome Statute. This report outlines the current convention and customary law on the use and prohibition of anti-personnel mines and booby-traps. The report is split into two parts. The first part examines the legality of anti-personnel mines, their position under conventional and customary law, in particular international humanitarian law. The second part explores the legality of booby-traps and other improvised explosive devices. Although Belgium has not proposed an amendment to the Rome Statute to include these types of weaponry, we have included booby-traps and other improvised explosive devices for consideration as a war crime as some 14,301 civilians in 2016 were killed or seriously injured by such weapons.4 1 Landmine Monitor 2016, International Campaign to Ban Anti-personnel Mines – Cluster Munitions Coalition (ICBL-CMC), (2016), p44. Over this 17 year period 102,970 mine/ERW casualties were recorded, including 26,230 people killed, 72,739 injured. 2 Office of the United Nations High Commissioner for Human Rights (OHCHR), Report on the human rights situation in Ukraine 16 May to 15 August 2016, para.41. In May-August 2017 16 civilians were killed and 42 injured in Ukraine – OHCHR, Report on the human rights situation in Ukraine, 16 May to 15 August 2017, p7. 3 Belgium Proposal of Amendments to the Rome Statute of the International Criminal Court, C.N.480.2017.TREATIES-XVIII.10, 15 August 2017. 4 See Explosive Truths: Monitoring explosive violence in 2016, Action on Armed Violence, April 2017, p23. Table of Contents STATUS AND LEGALITY OF ANTI-PERSONNEL MINES 1 I. AMENDMENT TO THE ROME STATUTE FOR PROHIBITION OF ANTI-PERSONNEL MINE USE AS A WAR CRIME 1 II. THE PROHIBITION OF ANTI-PERSONNEL MINES UNDER CUSTOMARY INTERNATIONAL LAW 1 III. USE OF ANTI-PERSONNEL MINES AS VIOLATING AN ALREADY ESTABLISHED RULE OF CUSTOMARY INTERNATIONAL LAW 5 A. INDISCRIMINATE ATTACKS 5 B. UNNECESSARY SUFFERING 8 IV. DRAFT OF PROPOSED AMENDMENT TO THE ROME STATUTE 13 THE STATUS AND LEGALITY OF BOOBY-TRAPS AND OTHER DEVICES 17 I. BOOBY-TRAPS AND OTHER DEVICES AS INDISCRIMINATE WEAPONRY 18 II. BOOBY-TRAPS AND OTHER DEVICES AS PERFIDIOUS WEAPONRY 22 III. DRAFT ARTICLE ON BOOBY-TRAPS OR OTHER DEVICES AS A WAR CRIME 24 This report was complied by the Human Rights Centre in the School of Law at Queen’s University Belfast.5 5 Cover photograph by Albert Gonzalez Farran, UNAMID, 'Aftermath of fighting in North Darfur', 25 March 2014 from Flickr: https://www.flickr.com/photos/unamid-photo/13483320053/in/photostream/ Status and Legality of Anti-personnel Mines I. Amendment to the Rome Statute for prohibition of anti-personnel mine use as a war crime The Rome Statute provides a list of war crimes, including grave breaches, other serious violations of international humanitarian law and serious violations of article 3 common to the Geneva Conventions. This list of war crimes was based on two considerations: i) The potential crime (“the norm”) should be a part of customary international law; and ii) Violations of the norm would give rise to individual criminal responsibility under customary international law.1 Individual criminal responsibility can likely be attached to anti-personnel mine use, meeting this aspect of the test. Whether anti-personnel mines prohibition is a customary rule of international law will likely determine whether an anti-personnel mine prohibition can be added to the Rome Statute. II. The prohibition of anti-personnel mines under Customary International Law A norm in customary international law requires both consistent and general practice, and state opinio juris.2 The International Committee of the Red Cross (ICRC) catalogues evidence of customary international law in an online database (the database). In terms of consistent and general practice, most states prohibit anti-personnel mines use by citing their obligations under the Ottawa Convention (the Convention). The Convention states the following in Article 1: 1. Each State Party undertakes never under any circumstances: (a) To use anti-personnel mines; (b) To develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines; 1 Knut Dörmann, War Crimes under the Rome Statute of the International Criminal Court, Max Planck Yearbook of United Nations Law, Volume 7, 2003, Brill (2004), 341–407, p343–345. 2 Legality of the Threat or Use of Nuclear Weapons, (Advisory Opinion), 1996 International Court of Justice Reports 226 (hereafter Nuclear Advisory Opinion) 254, para.64. 1 (c) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention. 2. Each State Party undertakes to destroy or ensure the destruction of all anti- personnel mines in accordance with the provisions of this Convention.3 The Convention, entered into force in 1999, has been ratified or acceded to by 162 states.4 The large proportion of participating states provides evidence that the anti- personnel mines prohibition is consistent and general practice. However such consistent and general practice among states is incomplete. While total adherence to a norm is not required to prove consistent and general practice, a greater proportion of states adhering to the norm offers stronger evidence that the practice is a rule of customary international law.5 Several countries have not ratified the Convention, notably, Israel, Russia, China, Korea, Ukraine, India, Pakistan and the United States of America.6 Still other states express their desire to choose anti-personnel mines as means of war.7 The United States of America offers further evidence of a lack of consistent state practice. While the Obama administration stated the United States would abide by the Convention, it has not ratified it, and continues to maintain anti-personnel mines in the Korean Peninsula.8 Although a number of states do not adhere to the anti-personnel mines prohibition, a convention can provide evidence of customary international law even if it is not unanimously adhered to, as full consensus of practice is not required for 3 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (opened for signature 3 December 1997, entered into force 1 March 1999). 4 Sara Schmitt, ‘The Ottawa Convention: Signatories and States-Parties’ Arms Control Association, 17 August 2017 <https://www.armscontrol.org/factsheets/ottawasigs> accessed 1 October 2017. 5 North Sea Continental Shelf Cases (Germany v Denmark) (Judgement) [1996] ICJ Rep 3, para.74. 6 Schmitt, n.4. 7 Cuba, Statement by the representative of Cuba before the First Committee of the UN General Assembly during the thematic debate on conventional weapons, 19 October 2010, p2, (State Practice, Chapter 29, VI. Other National Practice), ICRC, Customary IHL Database, https://ihl-databases.icrc.org/customary- ihl/eng/docs/v2_cha_chapter29_rule81 (2017-10-21). 8 The United States however has shifted its policy since 2004 to eliminate persistent (dumb) anti- personnel mines and since 2010 not to employ such mines. See US Law of Armed Conflict Deskbook, International and Operational Law Department, The Judge Advocate General’s Legal Center and School (2012), p156.
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